Redefining “Fair Compensation” In Our Nation’s Road To Recovery
Would you agree that a health provider, who knowingly billed an insurer twice for the same exact service, on the same patient, would be guilty of fraud?
If you received an after-tax check of $700 for a long week’s work, should your neighbor, not having worked at all, be able to submit your same timecard and receive $1,200?
Personal injuries involve those filed claims and lawsuits, including and superseding simple auto accidents, but involving a third party, liable for causing ‘damage’ to an individual. Some examples include medical malpractice, workplace injuries, negligence, abuse, assault, defective products and pharmaceuticals, etc. The health payer industry recognizes these as third-party liabilities or TPLs.
The Collateral Source Rule
Our initiation into the realm of third-party injury claims and torts begins with a true eye-opener – the Collateral Source Rule. This is a provision of common law, allowing an attorney or injured party, within their submission of a liability claim, to re-bill health claims already paid by the client’s health insurer. The collateral source rule is predicated upon the notion that injured parties deserve to be ‘fairly compensated,’ through more monies available in a settlement.
In a nutshell, liability insurers who receive injury claims must treat the patient’s medical bills as if they had never been paid – even though they may have knowledge the medical bills were paid. Submitted as the ‘special damages’ portion of a claim, these health bills are generally not limited in fee level, being billed at the health provider’s normal fees, rather than the health payer’s reimbursement rates.
Imagine, the receivers of the service can be reimbursed more than those who render it.
Also included is the ‘general damages’ portion of a settlement, representing calculations of pain and suffering, loss of ability to enjoy life, impaired ability to live and loss of reputation. In many cases, attorneys utilize a multiple of the special damages to, in large part, value the amount of general damages they ask for.
For example, a man who has worked as a welder for fifteen years, goes to the emergency room one day with a terrible cough and rigidity of limbs, which he has had continuously for two months. The diagnosis turns out to be manganese poisoning, believed to have come from the use of a specific type of welding rod. Eventually, he receives a secondary diagnosis of Parkinsonism, believed to stem from his metal-based toxicity. Subsequently, the manufacturer of the welding rod is involved in an injury claim, filed by the legal firm, representing the man.
The medical bills of the injured party for an eight-month period, including all emergency room, doctor visits, lab tests, pharmaceuticals, imaging and specialist visits to a neurologist, total approximately $400,000. The man’s commercial insurer paid a total of $220,000 to all health professionals, through negotiated contractual limits.
The man’s legal firm submits a claim in the amount of $3.2 million dollars, consisting of $400,000 worth of special damages and $2.8 million of general damages (eight times special damages). Eventually, the claim is settled before trial for $1.3 million dollars, $400,000 of which is still for special damages. There was no court record of the financial exchange.
Enter an operation called subrogation, a health payer right, both through state and federal laws. The veritable other side to the collateral source rule, it is an operation allowing the health payer to legally ask for and recover monies, from a successful injury settlement, in amounts related to medical bill pay outs.
In this case, the maximum recovery for the health plan is $220,000. However, the injured party is allowed to keep the additional $180,000 of special damages or double billed medical services, along with the additional $900,000 of general damages, minus the attorney's fee, secured by lien.
Now for the reality.
From the outset, it seems fair for both injured party and payer. They both have legal rights and they both have actions they can pursue. Apart from Medicare’s MSP program, lawyers and policyholders are typically not required to volunteer information of an incident or settlement back to the policyholder’s carrier. . .at least they’re not held to it. But if the carrier finds out about it, then there is responsibility to ‘fess up.’
Sweet commercial carrier/BCBS niblets! If the payer does not know to ask for their money, the policyholder and their attorney just simply choose to keep it? Why would a second helping of claim-related monies be insurance fraud for the provider, but fair compensation for a policyholder?
Voices all over America shout out for transparency in our healthcare system. Whether it is a political agenda, a proposed method for analyzing and valuing healthcare, a patient’s rights organization, an insurer investigating provider balance billing or perhaps the self-pay patient, who just got a big surprise statement in the mail, transparency allows for better levels of information, better decisions and more efficiency.
However, there are still some ‘dirty little secrets,’ which have all too conveniently steered clear of those interested in a necessary sharing of information. Take heart readers, transparency comes to the rescue!
A recent innovation in claims management technology, known as Collaborative Subrogation is creating a new type of transparency, through the sharing of patient release of information or ROI data, between carriers and their contracted health providers. Carriers are now allowed to better identify only those policyholders who are in real injury claims, rather than those who are coded as “accidents.”
By requiring provider participation, health payers are now able to create a viable extension of the obligation already existing for third-party liability data submission, through submitted claim form data. As this new claim technology develops, it will do two things.
First, it will bring monies back into our healthcare system, which in many cases are monies that should have never left in the first place. Latest estimates from Towers-Perrin put tort-related costs at $252 billion annually. Although not all of this is related to injury claims or lawsuits, injury claims constitute more than a fair portion.
Second, collaborative subrogation should aid in reducing the number of filings, related to nuisance claims. Some will argue attorneys will just ask for more money if they are increasingly held to returning more of it to the payer. However, liability insurers use specialized payment evaluation software, which does not base decisions on what is asked for.
Though not meant for tort reform, increased transparency coming from collaborative subrogation will alert policyholders and attorneys that their actions are being monitored more closely. Opportunities for quick and easy settlements may consequently, have lower valuation and necessity of filing, precluded by a more watchful set of eyes.
No matter how you feel, health payers are here to stay. They are inexorably linked to premium rates, provider reimbursement levels, employment and in many cases, public shareholders. Moreover, let’s not forget taxpayers with Medicare and Medicaid. These social health programs also use subrogation to find and recover mispaid injury claims. (workersxzcompxzkit)
Now more than ever, it is imperative that payers run more efficient models. Increased transparency . . . it’s not just for patients!
Author: Stephen Ambrose is the Executive Director for SubroShare®, an inexpensive web-based tool, added onto existing health payer claims software and outsourced vendor systems. He can be reached at steve@subroshare.com
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Have you ever noticed how a few catastrophic workers' compensation claims account for a very disproportionate amount of your workers' compensation cost?
At program renewal time, the dollars spent to settle those few catastrophic claims makes difference between a significant work comp premium increase, or no premium increase, or premium decrease. A structured settlement is one of the most effective tools to use to deal with the cost of high dollar work comp claims. Tort claims use structured settlements all the time since their introduction in the 1970's, but they were slower to catch on in work comp claims. The work comp community now recognizes the importance of structured settlements and frequently use them to resolve high value claims.
The primary benefit of using a structured settlement is the elimination of the long-term exposure of the catastrophic work comp claim. This is accomplished by the insurer or self-insured company purchasing an annuity from a life insurance company on the employee's life, guaranteeing the employee an income stream for a specific period of time, or for life — depending on how the structured settlement is crafted.
Plaintiff attorneys recognize most of their clients entire work comp settlement is used up within 3 to 5 years. The conscientious attorney works with the workers' compensation adjuster and the structured settlement company to protect the employee from possible spendthrift ways.
Plus, in those states where the insurer/self-insured is allowed to pay out the awards on a weekly basis, the structured settlement can be customized to pay a lump sum up front. Thus, the employee receives a small lump sum up front to cover all immediate needs and the plaintiff attorney collects the contingency fee and closes the file.
Potential benefits/selling points to the employee:
1. More money over time than would be received with a lump sum settlement.
2. Guaranteed lifetime payments rather than a designated maximum number of weeks in most state statutes.
3. Flexibility in payments, i.e., payments are customized to meet the individual's life events, such as a lump sum for college tuition or a new car every ten years.
4. Financial peace of mind. Removes the worry over future income or managing a large amount of money. 5. The ability to provide for a spouse with "joint life" payments, not available under worker comp laws.
Additional benefits to the employer/self-insured or insurer:
6. A complete resolution of the worker comp claim. All future cost are transferred to the life insurance company.
7. A fixed cost for the annuity, eliminating the exposure for continued and/or future medical expenses.
8. The elimination of volatility in the cost of future medical and future increases in the indemnity rate.
Split-Funding
A recent trend in some of the most severe cases is "split funding," the creation of two structured settlements. One structured settlement funds only the income stream for the employee. The second structured settlement funds the future medical cost eliminating any concerns of the employees about future medical cost, as the life insurance company does the medical cost underwriting and assumes responsibility of the future medical cost.
The best time for the work comp adjuster to start discussing the possibility of a structured settlement is when it becomes obvious the employee will probably never be able to return to work. If the adjuster waits until the plaintiff attorney sends a settlement demand to discuss the benefits of a structured settlement, the employee has probably already been told the lump-sum settlement range the plaintiff attorney's hopes to receive. By directing the discussion toward a structured settlement early on, the adjuster avoids the employee's false hopes about a "winning the lottery" type settlement.
Some plaintiff attorneys will want to utilize their selection of a structured settlement company. Such a choice almost always comes up with a higher cost than if you select your own structured settlement broker. If your insurer does not have its own in-house structured settlement broker, it is definitely recommended you work with your work comp adjuster to select your own structured settlement broker.
With your own structured settlement broker, you specify the amount of money you will invest now to eliminate the future cost of the claim. The structured settlement broker is then in a position to customize the structured settlement to meet the employee's needs and your determination of the settlement value. (workersxzcompxzkit)
While a structured settlement does not settle all catastrophic workers' comp claims, consider it on all your very large claims as a way to reduce the final cost of the claim to reduce or eliminate future workers' comp premium increases.
Note: there is a commission involved with buying structured settlement. Make sure you know who is receiving the commission and that is in line with the interests of your company.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Arapahoe Motors Inc., doing business as Ralph Schomp Automotive (Ralph Schomp), has agreed to pay $1.5 million and furnish other relief to settle a sex and age discrimination lawsuit filed by the United States Equal Employment Opportunity Commission (EEOC), the federal agency announced. Ralph Schomp, based in Littleton, is one of the highest volume BMW, Honda, and Mini dealers in Colorado.
According to the EEOC’s lawsuit (EEOC v. Arapahoe Motors, Inc., d/b/a Ralph Schomp Automotive, 09-cv-02961 REB-MJW), five women were subjected to sex discrimination and a sexually hostile work environment while employed by the car dealership. The unlawful conduct allegedly included offensive verbal comments and physical touching, demotion, refusal to transfer, salary reduction and failure to promote.
The EEOC also alleged that five older male employees were terminated because of their ages and replaced with younger, less experienced workers. Additionally, a manager in his twenties allegedly made age-related comments prior to the terminations and younger employees with lower sales numbers were retained.
“Sexual harassment and sex discrimination against women in traditionally male-dominated industries, such as the auto industry, are still unfortunate realities,” said EEOC Acting Chairman Stuart Ishimaru. “Likewise, older workers continue to experience age discrimination, despite their experience, productivity and qualifications. Employers should remember that the EEOC is here to find and fight this kind of unlawful mistreatment.”
In addition to the monetary settlement to be distributed among the 10 former employees, Ralph Schomp has agreed to enter into a two-year consent decree requiring it to post its anti-discrimination policy, provide training about anti-discrimination laws to its employees and managers, and make periodic reports to the EEOC. (workersxzcompxzkit)
EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District, which includes Colorado, added, “We commend Ralph Schomp for addressing this case head-on, for being willing to work with our Denver Field Office to resolve it, and for its commitment to better educate its work force. We believe this consent decree will help foster a discrimination-free workplace going forward.”
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
The thought behind benchmarking in claims management is to gain an understanding of how your claim results compare with the results of others. Benchmarking allows an understanding of where your results exceed and fall short compared to the others and serves as a baseline to set the bar for improvement.
Comparison between the claim results of other companies handled by your carrier or third-party administrator (TPA) and comparison with other companies in your industry, but handled elsewhere are a good place to start. Data is supplied by your TPA or carrier and is accessible on a state-by-state basis on NCCI’s website for industry comparison purposes.
Some areas for benchmarking include:
1. Rate of Injuries per 100 Employees (frequency)
2. Total Cost by Year
3. Average Paid per Claim (indemnity and medical broken out)
4. Number of Lost-Time vs. Medical Only Claims
5. Payments by Type (Medical, Indemnity, Legal and Expense)
6. Lag Time in Reporting (how long it takes to report claims for handling)
7. Litigation Rates (What Percentage of Claims Are Litigated)
Expense Costs – Legal and Other
These statistics break down in a variety of ways depending on what you want to consider or evaluate. Total annual costs can be broken down into how much went to medical only and lost-time claims and from there, how much went toward medical costs vs. indemnity costs. Further, the medical can be broken down to understand how much went to surgery, physical therapy, prescriptions, etc. and indemnity costs can be broken down into amounts paid in temporary total disability, permanent partial disability and permanent total disability.
Injury types can be measured to determine whether you have more back or knee injuries than other types and perhaps if one area or division of your company is producing more claims overall or more injuries or a particular type.
Once decide what you want to measure, compare your statistics to others with the data from your TPA or carrier and/or others in your industry to see how you measure up. Identify areas where you fall short such as with timely reporting or in claim expenses creates an opportunity for improvement and ultimately cost savings. (workersxzcompxzkit)
Benchmarking is an effective tool to measure your results against others including clients of your TPA or carrier and results with others in your industry. Use this valuable information wisely to detect areas for improvement and put plans into place to reach your goal.
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Some people follow Dr. Oz, but we follow Dr. Jake, Medical Director at Broadspire… who has great insight into workplace injuries, illnesses and prevention.
Chief medical officer for Broadspire, Dr. Jacob Lazarovic with over 25 years of experience, is one of the most respected physicians in the workers’ compensation medical community. At a recent webinar, Dr. Jake answered questions about the H1N1 virus and suggested ways to create a corporate pandemic plan and Broadspire’s client resources.
Q: Has the H1N1 vaccine been adequately tested?
DR. JAKE: While there are fears that it has been rushed to market, these fears are unfounded. The H1N1 vaccine received the same levels of rigorous testing as the regular flu vaccine and is manufactured using exactly the same processes. Data from the CDC to date shows that there is no significant reporting of adverse effects from the H1N1 flu vaccine. Had the testing been completed sooner – the H1N1 vaccine could have been included in the seasonal flu shot. People should not have any fear of receiving the H1N1 flu vaccine.
Q: Is there a guideline or requirement to give an employee a specific number of hours or days off from work after receiving the H1N1 flu vaccine?
DR. JAKE: The answer is no. Because you do not get the flu from the flu vaccine, there is no need to take time off from work after receiving the vaccine. That being said – if a person does receive the nasal form of the flu vaccine, they need to avoid close contact with people who have severely compromised immune systems. The period should last for the next 7 days after receiving the vaccine.
Q: How do I know if an employee who gets H1N1 got it in the course of their employment, or if they can file a workers compensation claim?
DR. JAKE: The rules and laws of each state are different. In general, H1N1 should not be handled any differently than any other flu-like illness with respect to compensability. There would need to be specific work-related exposures that exceed the risk of the general population with respect to contracting the illness. You should consult with your claim team manager or Account Executive to determine the best course of action.
Q: Is there a national state of emergency for H1N1 and how will it impact the delivery of the vaccine?
DR. JAKE: Subsequent to the Broadspire presentations, President Obama declared a national state of emergency regarding H1N1. This has enabled hospitals, county health departments, and other health care providers to speed up the delivery of the vaccine to priority populations. Supply is catching up to demand and most jurisdictions are moving from providing the vaccines only to high-priority populations to allowing general availability. (workersxzcompxzkit)
Author Jacob Lazarovic, Chief Medical Officer can be contacted at: AskDrJake@chooseBroadspire.com
©2010 Broadspire Services, Inc.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Introduction/Summary of Employers’ Obligations
Obligations of employers in Minnesota regarding employees returning to work following workplace injuries are not particularly restrictive, but careful employers need to be aware of certain limitations. There are also several common mistaken assumptions made by Minnesota employers on this issue. Employers need to be mindful of the actual requirements under the law, so they may fairly comply with them and not inadvertently take actions that may create significant legal exposure for employers.
In general, there is no absolute right under Minnesota’s workers’ compensation law (or any other law) for an injured employee either to be provided with “light duty” work or to be eventually reinstated/rehired. Minnesota law does, however, expressly prohibit employers from discriminating or retaliating against an employee who has suffered an on-the-job injury or filed a claim for workers’ compensation benefits. In order to not run afoul of that restriction, employers should typically engage in work availability analyses for such workers similar to those engaged in for purposes of analyzing possible “reasonable accommodations” requested by employees under the Americans with Disabilities Act (“ADA”). Best practices for employers in this area also include being routinely aware of the actual medical restrictions for injured employees as issued by their treating physician.
What the Law Says
1. Prohibition on Discrimination/Retaliation
The Minnesota workers’ compensation statute includes a provision (Minnesota Statutes section 176.82) that makes it unlawful to either refuse to offer continued employment or to re-employ an employee because of the fact that the employee pursued a workers’ compensation claim. This is an anti-retaliation provision and did not create guaranteed, continuing employment for injured workers. This part of the statute specifically prohibits employers from refusing to offer continued employment when employment “is available within the employee’s physical limitations.” The statute also makes it unlawful to discharge or threaten to discharge employees because they sought workers’ compensation benefits.
Claims by injured employees for violations of this part of the Minnesota workers’ compensation statute are resolved through the state court system – not through the workers’ compensation system. Employers’ exposure for such claims can be significant, because the law allows an employee who successfully pursues such a claim to recover up to $15,000 in lost wages (which is not covered by insurance), plus attorney’s fees and limited punitive damages. (The provision regarding the wrongful failure to offer continued employment or to re-hire is not applicable to employers with 15 or fewer employees.)
The good news for employers is this provision of the Minnesota workers’ compensation statute specifically allows an employer to assert as a defense that it had legitimate business reasons (“reasonable cause”) for either terminating an injured employee’s job, or failing to rehire an employee seeking a return to work following an injury. In order to be successful under this defense, an employer needs to be able to articulate (and be prepared to prove at trial, if necessary) that the failure to continue to employ the worker was for a legitimate business reason and not in retaliation for the assertion of workers’ compensation rights by the employee. Legitimate business reasons typically include the unavailability of any job positions fitting within an injured employee’s physical limitations (as specified in written medical restrictions) and the lack of any open positions for which an employee seeking to return to work is qualified and physically able to perform.
Employers are, however, required to make reasonable efforts to find acceptable positions for injured workers, including considering and making modifications to the employee’s pre-injury job duties, including both temporary and possibly permanent changes, when determining whether suitable employment opportunities exist for the injured employee.
The analysis an employer is required to undertake and the ultimate burden that it is obligated to tolerate are essentially identical to the “reasonable accommodation” requirements imposed on employers under the ADA. The key factors to consider are how significant the necessary job modifications would impact the core duties of an employee’s job, any expense that those modifications would require an employer to incur, and the administrative or other difficulties that may be caused by having to reassign (even on a temporary basis) some of the job duties to other co-workers.
2. Return to Work Via “Light Duty”
“Light duty” work is typically thought of as the creation of a new, temporary, position for an injured employee, as opposed to modifications to existing job duties. In Minnesota, there is no absolute right of an employee to be provided with “light duty” work when recovering from an on-the-job injury. Indeed, the phrase “light duty” appears nowhere within Minnesota’s voluminous workers’ compensation statute. Be that as it may, both employees and employers commonly – and mistakenly – assume there is such a right. Although an employer is certainly allowed to create a light duty position for an injured worker, employers are not required to do so under Minnesota law. If an employer chooses to offer a light duty position (at the same pay rate as the regular position) and the employee turns down a suitable job offer, the employer may cut off workers’ compensation wage replacement benefits.
That being said, Minnesota employers do have the legal obligation to entertain the possibility of making some modifications to an injured worker’s normal job duties (as discussed above). Nevertheless, employees do not have the right to, in essence, create their own job by demanding work of his or her choosing. Workers’ compensation insurers (and their third-party administrators) will often urge an employer to consider placement of an injured worker in a light duty position, in order to avoid having to pay workers’ compensation wage loss replacement benefits. As discussed below, how an employer chooses to handle such suggestions is really a business decision and not one driven by any legal requirements.
3. Leaves of Absence
In Minnesota, there is no such thing as a “workers’ compensation leave of absence.” An injured employee is either able to return to work, with or without reasonable job modifications, or the employee is unable to return to work. If the employee is unable to return to work on a temporary basis, the employee is then eligible for wage loss replacement benefits (referred to as “temporary total disability” benefits). Although there are specific time limitations that apply to the eligibility for such benefits, the injured employee does not have any other right to be provided with a leave of absence under Minnesota workers’ compensation law. (If, however, the injury at issue also qualifies under the ADA or the FMLA, an employer is required to analyze the possibility of leave of absence rights under those laws.) Although it is not uncommon for a Minnesota employer to consider out-of-work employees who are recovering from work-place injuries to be on workers’ compensation leaves of absence, the better approach is often to terminate the job position if the employee is unable to return to work, without holding the job open, and to then consider that person for possible re-hire at the point in time when the employee asserts that he/she is able to return to work.
4. Reinstatement/Rehiring
In Minnesota, injured employees do not have any absolute right to be reinstated into their pre-injury job, nor rehired into any position. As such, Minnesota does not recognize any “bumping rights” for injured employees. Employers do, of course, need to be mindful of the anti-retaliation provisions contained within Minnesota’s workers’ compensation law, as discussed above. As long as an employer complies with that provision of the statute, no other re-hiring or reinstatement rules apply. The bottom line here is that an injured employee who presents himself/herself as being ready to return to work must be able to establish they are qualified (with or without reasonable accommodations) for an existing and open job position. As a final note, employers with unionize work forces must, of course, be mindful of any bumping/reinstatement rights that are created under any applicable bargaining agreement.
5. Other Considerations for Employers
There are two other pragmatic points for employers when dealing with return-to-work issues. The first is the acknowledgement that an employer may face a significant financial impact even if it is not legally required to reemploy an injured employee, because that employee will then likely be in line to receive significant workers’ compensation benefits (wage loss replacement benefits) during a period of time when the employee remains unemployed. The second consideration is the “no good deed goes unpunished” phenomenon, meaning that if an employer is particularly charitable towards an employee and is willing to tolerate significant job modifications (or create an entirely new, light duty, position) and accompanying burden – above and beyond what is required under the law – the employer needs to be prepared to make the same concessions for other workers injured in the future.
The most significant benefits of adopting a liberal use of the creation of light duty positions include: (1) doing so may increase the likelihood that the employee will ultimately be able to return to active and productive work for the employer; and (2) using such an approach will hold down total workers’ compensation benefits paid and thus control the insurance premiums to be paid by the employer.
Significant disadvantages to a liberal – and voluntary – use of light duty positions include: (1) it may create a standard to be applied to the employer (in effect a “raising of the bar”) when an employer is faced in the future with fights over the legitimacy of the “undue hardship” justification for failing to continue to employ (or re-employ) an injured worker; (2) this approach has the tendency to create unreasonable expectations by employees as to the appropriate duration of the light duty position; and (3) this approach may negatively affect employee morale concerning other employees who perceive they are working significantly harder in exchange for the same pay.
The bottom line is that employers must be careful to go through a meaningful and very specific assessment when making decisions about whether and how to allow an injured employee to return to work.
Dean LeDoux is a principal at Gray Plant Mooty in the firm's Employment Law practice group. He represents labor and employment clients in a variety of jurisdictions, including federal and state courts, and before the National Labor Relations Board, the Equal Employment Opportunity Commission, the Minnesota Department of Human Rights, and other such agencies. Contact Dean at 612-632-3233 or Dean.LeDoux@gpmlaw.com . www.gpmlaw.com Offices in Minnesota and Washington, D.C.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
When workplace injuries come to mind the first employees one might think about are workers in factories, offices, building sites and over the road drivers. However, farming can be and is a dangerous industry. The “workplace” is unpredictable given the types of locations and size of machinery and weather.
Farmers in Great Britain are being encouraged to make their New Year's resolution a promise to come home safe from the fields. Nearly 15,000 farmers have already signed up to the campaign. More are now being encouraged to do the same.
The Health and Safety Executive (HSE) has launched the next phase in its 'Make the Promise' campaign with the stark message that people are still dying in needless farm accidents.
Across Great Britain, 38 workers lost their lives in farming-related incidents between January and November 2009. Recently finalized figures for 2008/09 showed 589 people were seriously injured in farming accidents.
Working in agriculture remains one of the most dangerous ways to make a living. It accounts for around one in five work-related deaths every year, although only 1.5% of the working population is employed in the sector.
In 2008/09 the highest percentage of fatal injuries to agricultural workers resulted from contact with moving machinery (27%). The most common kind of reported non-fatal injury to employees occurred through handling, lifting or carrying objects (26%).
Judith Donovan, HSE board member and its agriculture champion, noted, "For those 15,000 farmers we now have made the promise to come home safe, and the many more who may have made the pledge privately, the challenge for them now is to keep it, particularly when they're battling the weather or working to tight timescales. Losing concentration or taking seemingly harmless shortcuts is when horrific accidents can happen.
"To those farmers yet to make the promise, we encourage them to do it not only for themselves, but for their family and their livelihoods. "Over the last 10 years, 455 lives have been lost on British farms – that's hundreds of families and farms devastated. Let's make 2010 the year everyone comes home safe." (workersxzcompxzkit)
As part of the campaign, farmers can request 'Promise Knots' to place around their homes and farms as a simple, but ever-present reminder of the commitment they have made to come home safe.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
If your company is considering placing its general and/or auto liability with your worker’s compensation third-party administrator, you want to ask: “How does my TPA handle these five areas?” before you decide.
1- Loss Reporting
Your TPA must report losses in a timely manner by contacting all involved parties. Prompt, quality contact results in a reduction of claimant representation and litigation. If warranted, the TPA conducts prompt investigations. Together, these two aspects of loss reporting result in a reduction of over all claim costs.
2- Claim Assignment
An effective assignment process ensures the proper handing of claims at the appropriate technical level.
Your TPA practices a team approach to claim management by distributing the work to the most appropriate level of technical expertise in order to gain the highest possible efficiency.
Assignment Procedure
Look for a TPA using this process when a receipt of the loss notice is received from the call center, fax or e-mail.
First, a conduct a supervisory evaluation for coverage issues, complexity, severity of injuries and/or property damage, location of loss, investigative needs, and other special concerns.
Then, based on the initial information available on the above issues, assign the claim.
1. Where claims examiners are designated to handle claims for a particular account or program, assignment is to those designated claims examiners.
2. First- and third-party claims not involving bodily injury or complex legal issues are assigned to a claims examiner with the necessary claims handling experience.
3. First- and third-party claims involving coverage issues, questionable liability, legal issues, uninsured/underinsured motorists and bodily injury are assigned to a claims examiner with a higher level of experienced to ensure appropriate handling.
Be aware, claims classification and examiner assignment can change during the life of the claim if a significant change in complexity level occurs.
3- Coverage Verification
TPA verification efforts confirm all clients have a valid contract. Verify the validity of the client’s policy of insurance with the carrier, confirming client name, limits of coverage and effective dates. Coverage issues are recognized, investigated and addressed with the carrier.
After review of coverage information, the claims examiner opens and documents in file notes within 72 hours/three business days of receipt of the claim:
1. Carrier information.
2. Carrier underwriting company.
3. Policy number and policy effective dates
4. Accident state is a covered state.
5. Policy limits and applicable endorsements, if available.
If the examiner discovers any possible coverage issues:
1. Notify the carrier, as appropriate, in accordance with the carrier agreement.
2. Investigate coverage issues in accordance with the carrier agreement.
3. At the carrier’s direction, draft reservation of rights or disclaimer letters.
4. Review the client and carrier special handling instructions.
4- Quality Contacts
For contacts to be described as quality they must take place on time, result in establishing and maintaining effective communication with all key parties to the claim in order to facilitate investigation, determine liability and damages, and maintain control of the claim.
Initial Contact
1. Following receipt of the loss to your TPA, the claims examiner makes appropriate contacts by the end of the next business day. I.e., if the loss is reported on Monday at 10 a.m., the contact is made no later than 5 p.m. on Tuesday.
2. If a claimant cannot be reached within one business day, a letter is sent asking the claimant to call.
3. The claim examiner makes at least two additional telephone attempts to contact the applicable parties within five business day following receipt of the loss to the TPA. A letter is sent when the parties cannot be reached.
4. It’s a good idea to send letters, return-receipt-requested. Not only does this confirm receipt of your letter, but it also will notify you if the claimant is not at the address of record. People frequently move without notifying personnel.
Ongoing Contacts
Ongoing contacts with the pertinent parties to the claim tales place throughout life of the claim. Detail all contact efforts in file notes. Vary contact calling times in an effort to increase the chance of a successful contact. Significant changes in the claimant’s condition should be documented in the claim notes.
5- Investigation
A prompt, thorough investigation provides the framework for timely analysis of coverage, compensability, effective claim management, pursuit of cost-containment opportunities, and the timely resolution of claims.
The scope of the investigation takes into consideration the type of accident and claim complexity.(workersxzcompxzkit)
Identification and investigation of potential subrogation maximizes recovery potential and reduces client/carrier loss cost. All claims with potential subrogation are handled by a claims examiner who teams with a licensed subrogation partner to evaluate and pursue recovery opportunities.
When I toured the Broadspire (formerly called Crawford & Co) facilities several months ago, I noted they have an impressive array of services that covers all the bases listed above. Sometimes companies don't make as many detailed inquiries in their RFP for GL & Auto as they do for workers' comp, so this list is intended to provide insight to companies preparing their RFP for GL/Auto, as well as, work comp.
Author: Rebecca Shafer
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
A New York woman was arraigned on felony charges of first-degree identity theft and third degree grand larceny in the City of Hudson Court.
Accused of stealing the identity of a dead person to stay illegally in the United States and of stealing more than $12,000 in workers' compensation benefits, according to the New York State Insurance Department, the woman, a Mexican citizen, admitted buying the deceased person’s social security number to create a false identity when she entered the U.S. more than 10 years ago.
Authorities say the woman started receiving workers' comp benefits after injuring her arms and back while working for a different employer in 2001. (workersxzcompxzkit)
She continued to accept benefits after getting a job as a driver for a local clinic, where she also serves as interpreter for Spanish-speaking clients.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Your new workers’ compensation management policy is written and everyone knows all about it. So, what do you do next?
Research Communication Receivers and Pathways
1. How does communication travel in your company?
2. Does your company have a vertical communication structure: subordinate, to supervisor and up the management chain?
2. Does your company have a horizontal communication structure: peer-to-peer, inter-/-intra departmental communications pathways?
3. What about external communication?
4. How well does your company communicate to its peer companies the company is a safe place to work?
Determine: The Least Likely to Get the Message? The Most Likely to Go Out on Work Comp?
1. Do you have a contingent of workers who travel – and are not part of the inter-/intra-/vertical/horizontal communications loop such as traveling salesmen, truckers?
2. English may be a second language for a group of workers such as a large Hispanic or Asian population.
3. Do you have a group performing hazardous physical duties such as linemen, cable workers, machinists, etc.?
What is the Safety Department doing to communicate with employees and how well is the message getting out there?
1. You can discern this by watching people do things like hold the guardrails when stair climbing, wearing proper personal protective (PPE) equipment, etc.?
Dovetail workers’ comp management communication pieces in style and design.
1. To the extent safety is the flip side of workers’ compensation management, it may be worthwhile to look at their successfully communication pieces and piggyback on their strategies and tools. This does not mean to “steal” the safety person’s materials, look and see what tools work for them and how they communication successfully to their audiences, since their audience is also yours.
2. The more workers’ comp management practices are proactive, the fewer work comp claims are file and costs are reduced.
Write a Detailed Workers’ Comp Communication Plan
If you are starting your workers’ comp communications program in the middle of the year you can write an interim plan.
1. An interim plan is an outgrowth of the policy, drilling down to the what, how and when of the communication policy. The plan describes program initiatives and tools you will use to get across the workers’ comp management message across. (workersxzcompxzkit)
Once you’ve established communication pathways, target audiences, and drafted a plan, you are well on your way to implementing an effective, intentioned communications plan designed to bring employees at every level into the workers’ compensation management loop.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
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